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Duty to punish / Investigate

1932. The Appeals Chamber now turns to the second implicit legal finding on the duty to punish, namely whether measures that would ordinarily be considered insufficient to fulfill the duty to punish might in certain circumstances be considered as the only necessary and reasonable measures available. The Appeals Chamber affirms that what constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[1] This means that the assessment of measures taken, in view of the material ability of the superior, must be evaluated on a case-by-case basis.[2] That being said, the Tribunal’s case law has established a minimum standard for measures that may fulfil the duty to punish. A trial chamber must look at what steps were taken to secure an adequate investigation capable of leading to the criminal prosecution of the perpetrators.[3] In this respect, it is well accepted that a superior’s duty to punish the perpetrators of a crime includes at least an obligation to investigate possible crimes, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.[4] In respect of merely reporting crimes, this would only suffice to fulfil the duty to punish if such a report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[5] The Appeals Chamber notes that the duty of commanders to report to competent authorities is specifically provided for under Article 87(1) of Additional Protocol I, and that the duty may also be deduced from the provision of Article 86(2) of Additional Protocol I.[6] In addition, Article 87(3) of Additional Protocol I specifies that where a commander is aware that his subordinates have committed breaches of the Conventions or the Protocol, he must “initiate disciplinary or penal action against violators thereof”. While these provisions indicate that the report by a commander must be made to a body tasked with investigation and punishment, in military practice such reports may sometimes be made either directly to the competent authorities or through a superior officer.[7] The crucial point is that in order to constitute a necessary and reasonable measure to punish, the commander’s report must be sufficient to trigger the action of the competent authorities.

1933. As indicated by the above, a particular measure can only be regarded as necessary and reasonable where it has been shown to be capable of contributing to investigating or punishing the crimes in the circumstances which prevailed at the time. This is so even if the result ultimately falls short of punishment.[8] […]

1938. […] The Appeals Chamber considers that a duty to punish is not fulfilled where a commander was content to rely on assurances which he knew would not be or were not being implemented.[9] […]

[7] The Appeals Chamber notes that the applicable law of the Republika Srpska at the relevant time provided for the option of a superior officer to inform the military prosecutor “directly or through a higher-ranking officer” of his subordinates’ crimes. Ex. 6D00218, “Law on Military Courts”, Article 65.

182. On the one hand, the Appeals Chamber agrees with Halilović that the issue of the alleged failure to investigate has to be seen as an integral part of the assessment of a superior’s duty to punish.[1] On the other hand, however, the ability to initiate criminal investigations against the perpetrators may be an indicator of effective control.[2] Therefore, Halilović’s ability in this respect has to be carefully assessed in order to establish whether he had effective control over the perpetrators of the crimes committed in Grabovica. Indeed, as the Trial Chamber correctly outlined, “the duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities”. In this regard, the instruction Halilović gave Džanković “to collect as much information as possible and send it and inform the Sarajevo command about it”,[4] read together with Delić’s order to Halilović,[5] could suggest that Halilović had at least the ability to order an investigation and then prepare a report for his superiors.[6] The Appeals Chamber recalls in this regard that “reporting criminal acts of subordinates to appropriate authorities is eviden[ce] of the material ability to punish them in the circumstances of a certain case, albeit to a very limited degree”.[7]

[5] Trial Judgement, paras 307-308, quoting Exhibit 157 (“Check the accuracy of information regarding the genocide committed against the civilian population by the members of the 1st Corps 9th bbr/ Mountain Brigade/. If the information is correct, isolate the perpetrators and take energetic measures”).

510. The Appeals Chamber is concerned that the Trial Chamber failed to explicitly consider whether Bagosora had the material ability to punish culpable subordinates in the Trial Judgement. The Appeals Chamber considers that this amounts to a failure to provide a reasoned opinion. Nonetheless, the Appeals Chamber recalls that even where a superior personally lacks disciplinary or sanctioning powers, the duty can be fulfilled by reporting the crimes to the competent authorities to trigger investigation or disciplinary action.[1] In light of Bagosora’s senior position in the Ministry of Defence, and his access to senior military officers, as demonstrated by his attendance at meetings with them, even if he did not have direct sanctioning powers, he nonetheless had the ability to report the incidents to the relevant military officers to trigger investigations.

683. The Appeals Chamber recalls that the duty to punish will be fulfilled when necessary and reasonable measures to punish perpetrators have been taken.[2] What measures fulfil an accused’s duty to punish will be determined in relation to his material ability to take such measures.[3] In certain circumstances, although the necessary and reasonable measures may have been taken, the result may fall short of the punishment of the perpetrators.[4] Accordingly, the Appeals Chamber considers that the Trial Chamber’s statement that “[t]here is absolutely no evidence that the perpetrators were punished afterwards” was insufficient, in itself, to establish that Bagosora failed to fulfil his duty to punish the crimes of which he was convicted. The Appeals Chamber considers that, given the absence of any further reasoning supporting the conclusion that Bagosora failed to fulfil his duty to punish culpable subordinates, the Trial Chamber failed to provide a reasoned opinion. In these circumstances, the Appeals Chamber has reviewed the Trial Chamber’s factual findings and the relevant evidence on the record to determine whether a reasonable trier of fact could have found beyond reasonable doubt that Bagosora failed to take reasonable and necessary measures to punish his subordinates for the crimes committed.[…]

[4] SeeBoškoski and Tarčulovski Appeal Judgement, paras. 230 (“The Trial Chamber correctly held that the relevant question for liability for failure to punish is whether the superior took the necessary and reasonable measures to punish under the circumstances and that the duty to punish may be discharged, under some circumstances, by filing a report to the competent authorities.”), 231; Halilović Appeal Judgement, para. 182 (“[…] the duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities.” (emphasis in original)).

The Trial Chamber acquitted Boškoski of superior responsibility for the counts charged against him, finding that it was not shown that he had failed to take the necessary and reasonable measures to punish his subordinates for crimes committed in Ljuboten on 12 August 2001.[1] With respect to the alleged error of law, the Appeals Chamber held:

230. […]. The Appeals Chamber is satisfied that the […] findings [in paras 406, 415 and 417 of the Trial Judgement] correctly articulate the legal standard for failure to punish responsibility under Article 7(3) of the Statute. The Trial Chamber correctly held that the relevant question for liability for failure to punish is whether the superior took the necessary and reasonable measures to punish under the circumstances and that the duty to punish may be discharged, under some circumstances, by filing a report to the competent authorities.

231. With respect to these legal findings, the Prosecution submits that the Trial Chamber erred in relying on the Aleksovski and Brđanin Trial Judgements in finding that:

civilian superiors, who may lack the disciplinary or sanctioning powers of military commanders, may discharge their obligation to punish by reporting to the competent authorities whenever a crime has been committed if these reports are likely to trigger an investigation or initiate disciplinary or criminal proceedings.[2]

The Prosecution argues that in this passage the Trial Chamber erroneously overlooked that the relevant findings in the Aleksovski and Brđanin Trial Judgements were made in the context of determining the requirement of effective control, and not in relation to the element of necessary and reasonable measures. The Appeals Chamber recalls, however, that these two elements are interrelated, as the degree of effective control over subordinates can be evidence for the necessary and reasonable measures within the competence of a superior.[3] Consequently, the Trial Chamber was correct in finding that a civilian superior may, under some circumstances, discharge his obligation to punish an offending subordinate by reporting to the competent authorities when a crime has been committed, provided that this report is likely to trigger an investigation or initiate disciplinary or criminal proceedings.[4]

232. After having articulated the correct legal standard for responsibility for failure to punish under Article 7(3) of the Statute, the Trial Chamber found that Boškoski did not incur criminal liability for the crimes that occurred.[5] The Appeals Chamber is satisfied that the relevant findings show that the Trial Chamber applied the correct legal standard in this respect. In particular, the Trial Chamber did not, as alleged by the Prosecution, interpret the requirement of necessary and reasonable measures to punish the criminal acts of subordinates, as meaning that the superior need only provide a report to the competent authorities that is likely to trigger an investigation into the alleged criminal conduct.[6] Instead, the Trial Chamber held that the reports by the MoI to the competent authorities constituted a type of measure that satisfied the legal standard which was correctly identified as the “necessary and reasonable measures”.

234. The Appeals Chamber recalls that under the correct legal standard, a report to the appropriate authorities may be sufficient to discharge the obligation to punish offending subordinates: whether it is indeed sufficient depends on the circumstances of each case.[7] If, for instance, the superior knows that the appropriate authorities are not functioning or if he knows that a report was likely to trigger an investigation that was sham, such a report would not be sufficient to fulfil the obligation to punish offending subordinates.

For the Appeal Chamber’s assessment of the Trial Chamber’s factual findings in this regard, see paragraphs 229-236, 237-241, 259-272.

302. […] Article 6 (3) of the Statute establishes a duty to prevent a crime that a subordinate was about to commit or to punish such a crime after it is committed, by taking “necessary and reasonable measures”. The Appeals Chamber recalls that the interpretation of “necessary and reasonable measures” has been considered in previous cases before ICTY. The Čelebići Trial Judgement found that:

[A] superior should be held responsible for failing to take such measures that are within his material possibility… [T]he lack of formal legal competence to take the necessary measures to prevent or repress the crime in question does not necessarily preclude the criminal responsibility of the superior”.[1]

The Appeals Chamber agrees with this interpretation and further notes that the Trial Chamber applied a similar approach when it found that:

In order to establish responsibility of a superior under Article 6 (3), it must also be shown that the accused was in a position to prevent or, alternatively, punish the subordinate perpetrators of those crimes. Clearly, the Trial Chamber cannot demand the impossible. Thus, any imposition of responsibility must be based upon a material ability of the accused to prevent or punish the crimes in question.[2]

Thus, it is the effective capacity of the Accused to take measures which is relevant. Accordingly, in the assessment of whether a superior failed to act, it is necessary to look beyond formal competence to actual capacity to take measures. […]